As filed with the Securities and Exchange Commission on February 13, 1998
Registration No. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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RADIANT TECHNOLOGY CORPORATION
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(Exact name of registrant as specified in its charter)
California 95-2800355
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(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1335 South Acacia Avenue, Fullerton, California 92831
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(Address of Principal Executive Offices) (Zip Code)
RADIANT TECHNOLOGY CORPORATION 1998 STOCK OPTION PLAN
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(Full title of the plan)
Lawrence R. McNamee
1335 South Acacia Avenue
Fullerton, California 92831
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(Name and address of agent for service)
(714) 991-0200
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(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
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Proposed Proposed
Title of maximum maximum Amount of
securities to be Amount to be offering price aggregate registration
registered registered per unit offering price fee
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Common Stock, 636,666 $.8725(1) $ 235,850(1) $ 71.47
no par value shs.(2) ------- -------- ------
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(1) Based upon the average of the bid and asked prices for the registrant's
common stock on February 10, 1998 for purposes of computing the
registration fee on underlying options to purchase 180,000 shares not yet
granted in accordance with Rules 457(c) and 457(h) under the Securities Act
of 1933, as amended, and based upon the exercise price for the registrant's
common stock for purposes of computing the registration fee on 456,666
underlying outstanding options.
(2) Includes 180,000 shares issuable upon exercise of stock options which are
part of the 1998 Stock Option Plan and 456,666 shares issuable to employees
and directors upon exercise of non-qualified stock options, which are not
part of the 1998 Stock Option Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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Radiant Technology Corporation (the "Company") incorporates by reference into
this Registration Statement:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1997.
2. The description of the Company's common stock contained in the
Company's Registration Statement on Form S-18 (Reg. No. 2-72528-LA).
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all of the securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated by reference herein
as set forth above shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities.
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Inapplicable.
Item 5. Interests of Named Experts and Counsel.
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Inapplicable.
Item 6. Indemnification of Directors and Officers.
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California Statutes
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SS.317. INDEMNIFICATION OF CORPORATE "AGENT".
(a) for the purposes of this section, "agent" means any person who is
or was a director, officer, employee or other agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise, or was a director, officer, employee or agent of a
foreign or domestic corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of the predecessor
corporation; "proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative; and
"expenses" includes without limitation attorneys' fees and any expenses of
establishing a right to indemnification under subdivision (d) or paragraph (4)
of subdivision (e).
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any proceeding (other than an
action by or in the right of the corporation to procure a judgment in its favor)
by reason of the fact that the person is or was an agent of the corporation,
against expenses, judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with the proceeding if that person acted in
good faith and in a manner the person reasonably believed to be in the best
interests of the corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of the person was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in the best interests of the corporation or
that the person had reasonable cause to believe that the person's conduct was
unlawful.
(c) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending, or
completed action by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that the person is or was an agent of the
corporation, against expenses actually and reasonably incurred by that person in
connection with the defense or settlement of the action if the person acted in
good faith, in a manner the person believed to be in the best interests of the
corporation and its shareholders.
No indemnification shall be made under this subdivision for any of the
following:
(1) In respect of any claim, issue or matter as to which the person
shall have been adjudged to be liable to the corporation in the performance of
that person's duty to the corporation and its shareholders, unless and only to
the extent that the court in which the proceeding is or was pending shall
determine upon application that, in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for expenses and then
only to the extent that the court shall determine.
(2) Of amounts paid in settling or otherwise disposing of a pending
action without court approval.
(3) Of expenses incurred in defending a pending action which is settled
or otherwise disposed of without court approval.
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(d) To the extent that an agent of a corporation has been successful on
the merits in defense of any proceeding referred to in subdivision (b) or (c) or
in defense of any claim, issue, or matter therein, the agent shall be
indemnified against expenses actually and reasonably incurred by the agent in
connection therewith.
(e) Except as provided in subdivision (d), any indemnification under
this section shall be made by the corporation only if authorized in the specific
case, upon a determination that indemnification of the agent is proper in the
circumstances because the agent has met the applicable standard of conduct set
forth in subdivision (b) or (c), by any of the following:
(1) A majority vote of a quorum consisting of directors who are not
parties to such proceeding.
(2) If such a quorum of directors is not obtainable, by independent
legal counsel in a written opinion.
(3) Approval of the shareholders (Section 153), with the shares owned
by the person to be indemnified not being entitled to vote thereon.
(4) The court in which the proceeding is or was pending upon
application made by the corporation or the agent or the attorney or other person
rendering services in connection with the defense, whether or not the
application by the agent, attorney or other person is opposed by the
corporation.
(f) Expenses incurred in defending any proceeding may be advanced by
the corporation prior to the final disposition of the proceeding upon receipt of
an undertaking by or on behalf of the agent to repay that amount if it shall be
determined ultimately that the agent is not entitled to be indemnified as
authorized in this section. The provisions of subdivision (a) of Section 315 do
not apply to advances made pursuant to this subdivision.
(g) The indemnification authorized by this section shall not be deemed
exclusive of any additional rights to indemnification for breach of duty to the
corporation and its shareholders while acting in the capacity of a director or
officer of the corporation to the extent the additional rights to
indemnification are authorized in an article provision adopted pursuant to
paragraph (11) of subdivision (a) of Section 204. The indemnification provided
by this section for acts, omissions, or transactions while acting in the
capacity of, or while serving as, a director or officer of the corporation but
not involving breach of duty to the corporation and its shareholders shall not
be deemed exclusive of any other rights to which those seeking indemnification
may be entitled under any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, to the extent the additional rights to
indemnification are authorized in the articles of the corporation. An article
provision authorizing indemnification "in excess of that otherwise permitted by
Section 317" or "to the fullest extent permissible under California law" or the
substantial equivalent thereof shall be construed to be both a provision for
additional indemnification for breach of duty to the corporation and its
shareholders as referred to in, and with the limitations required by, paragraph
(11) of subdivision (a) of Section 204 and a provision for additional
indemnification as referred to in the second sentence of this subdivision. The
rights to indemnity hereunder shall continue as to a person who has ceased to be
a director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of the person. Nothing contained in this
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section shall affect any right to indemnification to which persons other than
the directors and officers may be entitled by contract or otherwise.
(h) No indemnification or advance shall be made under this section,
except as provided in subdivision (d) or paragraph (4) of subdivision (e), in
any circumstance where it appears:
(1) That it would be inconsistent with a provision of the articles,
bylaws, a resolution of the shareholders, or an agreement in effect at the time
of the accrual of the alleged cause of action asserted in the proceeding in
which the expenses were incurred or other amounts were paid, which prohibits or
otherwise limits indemnification.
(2) That it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
(i) A corporation shall have power to purchase and maintain insurance
on behalf of any agent of the corporation against any liability asserted against
or incurred by the agent in that capacity or arising out of the agent's status
as such whether or not the corporation would have the power to indemnify the
agent against that liability under this section. The fact that a corporation
owns all or a portion of the shares of the company issuing a policy of insurance
shall not render this subdivision inapplicable if either of the following
conditions are satisfied: (1) if the articles authorize indemnification in
excess of that authorized in this section and the insurance provided by this
subdivision is limited as indemnification is required to be limited by paragraph
(11) of subdivision (a) of Section 204; or (2)(A) the company issuing the
insurance policy is organized, licensed, and operated in a manner that complies
with the insurance laws and regulations applicable to its jurisdiction of
organization, (B) the company issuing the policy provides procedures for
processing claims that do not permit that company to be subject to the direct
control of the corporation that purchased that policy, and (C) the policy issued
provides for some manner of risk sharing between the issuer and purchaser of the
policy, on one hand, and some unaffiliated person or persons, on the other, such
as by providing for more than one unaffiliated owner of the company issuing the
policy or by providing that a portion of the coverage furnished will be obtained
from some unaffiliated insurer or reinsurer.
(j) This section does not apply to any proceeding against any trustee,
investment manager, or other fiduciary of an employee benefit plan in that
person's capacity as such, even though the person may also be an agent as
defined in subdivision (a) of the employer corporation. A corporation shall have
power to indemnify such a trustee, investment manager, or other fiduciary to the
extent permitted by subdivision (f) of Section 207.
Articles of Incorporation
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The Company's Articles of Incorporation, as amended, provide that the
liability of the directors of the Company for monetary damages shall be
eliminated to the fullest extent permissible under California law. The Company's
Articles of Incorporation authorize the Company to provide idemnification of
agents for breach of duty to the Company and its shareholders through bylaw
provisions, or through agreements with its agents, or both, in excess of the
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indemnification otherwise permitted by Section 317 of the California
Corporations Code, subject only to applicable limits set forth in Section 204 of
the California Corporations Code.
Bylaws
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Article VI of the Company's Bylaws provides for indemnification of the
Company's directors, officers and agents to advance expenses for defense of
litigation and to purchase and maintain insurance on behalf of any director or
officer of the Company against any liability asserted against or incurred by
them in such capacity or arising out of their status as such and authorize the
Board to extend such indemnity to others as follows:
ARTICLE VI. Indemnification.
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Section 1. DEFINITIONS. For the purposes of this Article, "agent" means
any person who is or was a director, officer, employee or other agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, or was a director,
officer, employee or agent of a foreign or domestic corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation. "Proceeding" means any threatened,
pending or completed action or proceeding, whether civil, criminal,
administrative or investigative and "expenses" includes without limitation
attorneys' fees and any expenses of establishing a right to indemnification
under Sections 4 or 5(c).
Section 2. INDEMNIFICATION IN ACTIONS BY THIRD PARTIES. The corporation
shall have power to indemnify any person who was or is a party or is threatened
to be made a party to any proceeding (other than an action by or in the right of
the corporation to procure a judgment in its favor) by reason of the fact that
such person is or was an agent of the corporation, against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred in
connection with such proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in the best interests of the
corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe the conduct of such person was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which the person reasonably
believed to be in the best interests of the corporation or that the person had
reasonable cause to believe that the person's conduct was unlawful.
Section 3. INDEMNIFICATION IN ACTIONS BY OR IN THE RIGHT OF THE
CORPORATION. The corporation shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that such person is or was an agent of the
corporation, against expenses actually and reasonably incurred by such person in
connection with the defense or settlement of such action if such person acted in
good faith, in a manner such person believed to be in the best interests of the
corporation and with such care, including reasonable inquiry, as an ordinarily
prudent person in a like position would use under similar circumstances. No
indemnification shall be made under this Section 3:
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(a) In respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation in the performance of
such person's duty to the corporation, unless and only to the extent that the
court in which such proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnify for the expenses which such court
shall determine;
(b) Of amounts paid in settling or otherwise disposing of a threatened
or pending action, with or without court approval; or
(c) Of expenses incurred in defending a threatened or pending action
which is settled or otherwise disposed of without court approval.
Section 4. INDEMNIFICATION AGAINST EXPENSES. To the extent that an
agent of the corporation has been successful on the merits in defense of any
proceeding referred to in Sections 2 or 3 or in defense of any claim, issue or
matter therein, the agent shall be indemnified against expenses actually and
reasonably incurred by the agent in connection therewith.
Section 5. REQUIRED DETERMINATION. Except as provided in Section 4, any
indemnification under this Article shall be made by the corporation only if
authorized in the specific case, upon a determination that indemnification of
the agent is proper in the circumstances because the agent has met the
applicable standard of conduct set forth in Sections 2 or 3, by:
(a) A majority vote of a quorum consisting of directors who are not
parties to such proceeding;
(b) Approval of the shareholders, with the shares owned by the person
to be indemnified not being entitled to vote thereon; or
(c) The court in which such proceeding is or was pending upon
application made by the corporation or the agent or the attorney or other person
rendering services in connection with the defense, whether or not such
application by the agent, attorney or other person is opposed by the
corporation.
Section 6. ADVANCE OF EXPENSES. Expenses incurred in defending any
proceeding may be advanced by the corporation prior to the final disposition of
such proceeding upon receipt of an undertaking by or on behalf of the agent to
repay such amount unless it shall be determined ultimately that the agent is
entitled to be indemnified as authorized in this Article.
Section 7. OTHER INDEMNIFICATION. No provision made by the corporation
to indemnify its or its subsidiary's directors or officers for the defense of
any proceeding, whether contained in the Articles, Bylaws, a resolution of
shareholders or directors, an agreement or otherwise, shall be valid unless
consistent with this Article. Nothing contained in this Article shall affect any
right to indemnification to which persons other than such directors and officers
may be entitled by contract or otherwise.
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Section 8. FORMS OF INDEMNIFICATION NOT PERMITTED. No indemnification
or advance shall be made under this Article, except as provided in Sections 4 or
5(c), in any circumstances where it appears:
(a) That it would be inconsistent with a provision of the Articles,
Bylaws, a resolution of the shareholders or an agreement in effect at the time
of the accrual of the alleged cause of action asserted in the proceeding in
which the expenses were incurred or other amounts were paid, which prohibits or
otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
Section 9. INSURANCE. The corporation shall have power to purchase and
maintain insurance on behalf of any agent of the corporation against any
liability asserted against or incurred by the agent in such capacity or arising
out of the agent's status as such whether or not the corporation would have the
power to indemnify the agent against such liability under the provision of this
Article.
Section 10. NONAPPLICABILITY TO FIDUCIARIES OF EMPLOYEE BENEFIT PLANS.
This Article does not apply to a proceeding against any trustee, investment
manager or other fiduciary of an employee benefit plan in such person's capacity
as such, even though such person may also be an agent of the corporation as
defined in Section 1. A corporation shall have power to indemnify such a
trustee, investment manager or other fiduciary to the extent permitted by
Subdivision (f) of Section 207 of the California General Corporation Law.
Indemnity Agreements.
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The Company has entered into an Indemnity Agreement with each of its
directors and officers pursuant to which the Company has agreed to maintain
directors' and officers' liability insurance unless the Company determines in
good faith that such insurance is not reasonably available, the premium costs
are disproportionate to the amount of coverage, the coverage islimited by
exclusions so as to provide insufficient benefit or the director or officer is
covered by similar insurance maintained by a subsidiary of the Company. The
Indemnity Agreements also provide for mandatory indemnification of a director or
officer against third party actions and derivative actions and mandatory
advancement of expenses subject to the undertaking of the director or officer to
repay advanced expenses if it is ultimately determined that the director or
officer was not entitled to indemnification.
Item 7. Exemption from Registration Claimed.
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Inapplicable.
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Item 8. Exhibits.
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Exhibit Number Description
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3.1 Certificate of Restated Articles of Incorporation incorporated
by reference to the Registration Statement of Form S-18
(Registration No. 2-72528-LA).
3.1(a) Certificate of Amendment of Articles of Incorporation
incorporated by reference to the Proxy Statement dated January
14, 1986.
3.1(b) Certificate of Amendment of Articles of Incorporation
incorporated by reference to Annual Report on Form 10-K filed
January 15, 1990.
3.2 Restated Bylaws incorporated by reference to the Registration
Statement on From S-18 (Registration No. 2-72528-LA).
3.2(a) Amendment to Bylaws incorporated by reference to Annual Report
on Form 10-K filed January 15, 1990.
4.1 Specimen of Common Stock Certificate incorporated by reference
to Registration Statement on From S-18 (Registration No.
2-72528-LA).
5.1 Opinion of Bruck & Perry re: legality of shares.
10.1 Stock Option Agreement dated as of September 30, 1992 between
the Company and Lawrence R. McNamee.
10.2 Form of Amended and Restated Non-Qualified Stock Option
Agreement dated as of September 30, 1996 between the Company
and Joseph S. Romance, Peter D. Bundy, Robert B. Thompson and
Carson T. Richert.
23.1 Consent of Bruck & Perry, A Professional Corporation (included
in its opinion filed as Exhibit 5.1 to the Registration
Statement).
23.2 Consent of Cacciamatta Accountancy Corporation.
99.1 Radiant Technology Corporation 1998 Stock Option Plan and
Forms of Incentive Stock Option Agreement and Non-Qualified
Stock Option Agreement.
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Item 9. Undertakings.
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A. The undersigned registrant hereby undertakes to file during any
period in which offers or sales of the securities are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed or
any material change to such information set forth in the Registration Statement.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. The undersigned registrant hereby undertakes to remove from
registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
D. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
E. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
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The Registrant
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Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fullerton, State of California, on January 22, 1998.
RADIANT TECHNOLOGY CORPORATION,
a California corporation
By:/s/ LAWRENCE R. MCNAMEE
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Lawrence R. McNamee,
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/s/ LAWRENCE R. MCNAMEE Chief Executive Officer January 22, 1998
- ----------------------- and Director (Principal
LAWRENCE R. McNAMEE Financial and Accounting
Officer)
/s/ JOSEPH S. ROMANCE Director January 22, 1998
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JOSEPH S. ROMANCE
/s/ CARSON T. RICHERT Director January 22, 1998
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CARSON T. RICHERT
/s/ PETER D. BUNDY Director January 22, 1998
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PETER D. BUNDY
/s/ ROBERT B. THOMPSON Director January 22, 1998
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ROBERT B. THOMPSON
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